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Sad news for XOOPS Community: Dutch court dismisses our claims against Herko Coomans

Posted by Mamba on 2010/4/24 18:50:00 (9519 reads) | Posted on XOOPS
Very sad and disappointing news for our community!

As you know, in 2009, we have filed a lawsuit against our former Project Manager Herko Coomans for return of funds (around €15,000) that belong to XOOPS community and are currently held by "Stichting XOOPS"

We've been just informed by our lawyers in Netherlands that unfortunately the Dutch Court dismissed our claims. The verdict is clearly disappointing to us and we strongly believe that the District Court of Zwolle-Lelystad erred in its conclusion, and we are investigating a possible appeal.

For example, it is beyond our comprehension that the court could state that purchasing by Herko the domain www.xoops.com on behalf of XOOPS (as confirmed by others) for $18.95 and selling it back to Stichting XOOPS for €4,000, while being approved by the same man who sells it (which is Herko Coomans himself), doesn't consitute a "personal enrichment", or as we would call it in the US: Self-dealing. At a current exchange rate that's $5,330 profit for Herko, which he approved for himself out of XOOPS money!!! If you're puzzled by such a verdict, so are we!

[Edit]Especially since the Dutch Supreme Court is very clear in its decisions about "Conflict of Interest" (see here)

This case will be definitely a warning to other Open Source projects to avoid the Dutch "Stichting" legal form, and about the Dutch court that obviously doesn't understand the Open Source project idea.

You can see the verdict in Dutch here

While we are investigating a possible appeal, the important thing for us as a community is to continue with our work and keep moving forward. Our XOOPS journey continues!

We appreciate all of your support in this legal matter and our most sincere "Thanks" goes to all the 225 people who signed the petition!

Below is the English translation done by Ghia. If there are any corrections needed, please let us know, and we'll improve it.

Quote:
2 Facts

2.1 XOOPS Foundation LLC is a formalisation of an internet community, that it occupies with the development of the XOOPS software. Hundreds of volunteers , worldwide are developing this software. Coomans was one of these voluntairs.

2.2 XOOPS Foundation LLC was founded on 9 november 2009.

2.3 Coomans has founded the Stichting XOOPS on 26 november 2004. The goal of the Stichting is the promoting of the open source use and development of the eXentensible Object Oriented Portal System (XOOPS) Content Managment System inside the borders of the General Public License.

2.4 By the users of the open source software are donations transferred to the Stichting. With these moneys, the Stichting organises lectures and hardware is procured, used for the development of the software of the XOOPS project.

2.5 On 21 september 2003 has Coomans the domain name xoops.com registered in his name.

2.6 Coomans has the domain name xoops.com in the first half of 2008 offered for sale on the internet. He sold and delivered the domain name on 14 november 2008 to the Stichting for an amount of 4000 EUR.

3 The Dispute

3.1 XOOPS Foundation LLC demands in primary and subsidiary variants - summarised - conviction of Coomans to payment to her, at least to defendant sub 2 of 4000 EUR plus the other damages to be listed and to egalise them following the law, added with interests and costs. XOOPS Foundation LLC also demands an explaination for justice, that Coomans has enriched himselfes with regard to defendent sub 2.
Also XOOPS Foundation LLC demands that Coomans, or at least the Stichting is forbidden to do further retirements of the activa, among which the domain names, of defendent sub 2 for private goals of Coomans, or for other goals then the statuary goals of the Stichting, on penalty of a recurrent fine. XOOPS Foundation LLC made its demands pro se or according to article 3.305a of the Civil Code

3.2 Coomans defends. On the statements of the parties, if of importance, will be comented hereafter.

4 Judgement

4.1 The dispute between the parties has, seen the location of XOOPS Foundation LLC, an international character. Following article xxxxx is the Dutch judge authorised. Parties made both reference to the Dutch Civil Code and this is for the court a silent choice for the Dutch law. The court will therefore apply the Dutch law.

4.2 XOOPS Foundation LLC has the demands by means of a collective action posted following article xxx, as pro se

4.3 The court shall declare XOOPS Foundation LLC not submissible for sofar the demand is based on collective action. Following article xxx en following jurisdiction, such an action can only demanded by a legal entity, that following its statues and also effectively focus on the defending of the interests of the group that it represents and in general measurement is esteemed representative enough for to act in obligant cases as protecting the collective interests for the law, as eg a Consumer Organisation.
That XOOPS Foundation LLC in these effective act to protect an enough representative group of the XOOPS internet community and especially in defending the interests of it, is motivated, disputed by Coomans cs and afterwards inadequate substanstiated. From the 8 by XOOPS Foundation LLC submitted declarations, where only 3 had a signature, of the XOOPS involved parties on the stated hundreds of volunteers, can this not be derived. The court can this also not etablish on base of the other by XOOPS Foundation LLC stated productions. From the piece that as production 1 by the subpoema is given (Initial Articles of Incorporation), the court is only aware that XOOPS Foundation LLC is founded with the goal to promote the free use of the XOOPS software. It is not to the court to distillate the aledged same common defence of interests out of the English texts, but the XOOPS Foundation LLC has to state this explicitly and therby to point out the relevant parts of these pieces, which she has neglected.

4.4 Therby comes the court to the judgement of the demands for sofar the XOOPS Foundation LLC has made these demands pro se. XOOPS Foundation LLC substanstiates the demanded, summarised, with the statement that the Stichting has been founded in service of the internet community, whereby funds were raised for the needs of this internet community and that it seems that Coomans, via the Stichting, only serves his private interests and not the ones of the XOOP internet community, whereby personal enrichment comes up . Coomans cs have motivated disputed this.

4.5 In this case, it is a fact that the Stichting is founded by Coomans on 26 november 2004 en that he is the only chairman, while XOOPS Foundation LLC is founded on 9 november 2009. From the declarations of both parties follows that XOOPS Foundation LLC as Coomans cs have the goal of developing and promoting the free software, designated as XOOPS and make it accessible to the internet community, but that one of the parties has in this respect an exclusive right, that is not enough stated and it is not obvious to the court. That not the Stichting, but XOOPS Foundation LLC is the rightful claimant for the moneys donated by the users of the XOOPS software to the Stichting and that these activa must be transferred to XOOPS Foundation LLC is motivated, disputed by Coomans cs and is then insufficient substanstiated by the XOOPS Foundation LLC. There are no pieces submitted by XOOPS Foundation LLC were that explicitly makes clear, while tangible pieces that show an contractual relation between Coomans cs and XOOPS Foundation LLC exists, that can be qualified as a legal relation between Coomans cs and XOOPS Foundation LLC and which brings obligations for these parties, are missing. Lacking other statements on that point, the court assumes it is up to the users of the software to determine if they donate money to either the Stichting or to XOOPS Foundation LLC, which activa then can be used to his sole discrecy of the receiver.

4.6 With respect to the domain name, the court establishes by the answer from production a, that Coomans has registered the name on his behalf and thus not for the XOOPS community. That XOOPS Foundation LLC has a right for the name and that Coomans cs has handled in dispute of that by selling the domain name is again motivated, disputed and afterwards not substanstiated by XOOPS Foundation LLC with enough tangible facts. This way, there can not be assumed that Coomans has enriched himselves in disfavour of XOOPS Foundation LLC or has violated with XOOPS Foundation LLC made agreements on that point.


4.7 The conclusion is that the demands are to be denied.

4.8 XOOPS Foundation LLC shall as the put into wrong party judged to pay the proceeding costs.


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The comments are owned by the author. We aren't responsible for their content.

Very bad news indeed.
Maybe a petition with signatures have seen more real, and a word indicating that donor money was not for the Foundation but Striching for the project / community itself)

kris

and edited by kris
Published: 2010/4/24 19:14 • Updated: 2010/4/25 5:16
I don't think it implies that Coomans owns the trademark 'XOOPS', Kris. Which part of the text do you interpret that from?

[edit: It seems that the actual signatures (on paper) of the petitioners might have made a difference. If an appeal is launched, it might be good to print up an actual document that can be printed and signed by the 225 signers of the electronic petition, then mailed back and included in the appeal. This, of course, would not guarantee a favourable amendment, but may show that there are a number of people prepared to go to some effort to express their indignation as to the manner in which they feel they have been treated by Coormans.]
Published: 2010/4/25 2:46 • Updated: 2010/4/25 3:03
NO to think you could 'own' an opensource trademark you would have to be grandeous especially herko cooperman, it is upto the ways it is and how you interpret it, it is like me going and registering XOOPS Foundation in australia.

Personally I think with 3.0 seperate the two components framework and cms and release a heathy class version of zend, yii, cakephp, etc. But an actual heathy copy.. known as a heath class the - XOOHS - eXtendable Object Orientated Heath System or something else for H.. and maybe system for solution.

I have the main domains parked for the XOOPS Foundation -- so we can have a framework for MVC for XOOPS the XOOHS system and still with 3.0 have the CMS using XOOHS known as XOOPS..
Published: 2010/4/25 4:25 • Updated: 2010/4/25 4:27
I realy wish the Xoops foundation will settle with this verdict. Further appeal makes no sense and would only be for principal matter. I doubt wat we as a community can win except losing more money... Let this verdict be a lesson for Xoops. I wish legal matters are arranged better now than they where before.
Published: 2010/4/25 15:01 • Updated: 2010/4/25 15:01
How can this be possible?!

Mr. Herko Coomans is a scourge for Xoops !
Published: 2010/4/25 16:35 • Updated: 2010/4/25 16:35
very sad
Published: 2010/4/26 3:29 • Updated: 2010/4/26 3:29
Quote:
it is beyond our comprehension that the court could state that purchasing by Herko the domain www.xoops.com on behalf of XOOPS (as confirmed by others)

Who has confirmed this? I have only seen people (including myself) denying the claim that Herko purchased the domain on behalf of anyone.

You also conveniently leave out of the equation the fact that Herko had the domain appraised by independent valuars - he did not arbitrarily pick the amount out of thin air.

Now the verdict complies with common sense and you should start moving on instead of wasting more of XOOPS' money on useless lawsuits. (only my opinion and seeing how you seem to like to play childish censorship games with forks and other CMS's, I doubt you will listen to reason now... so good luck XOOPSers. I think you'll need it)

/bye
Published: 2010/4/26 6:14 • Updated: 2010/4/26 6:14
hi' Mithrandir

I'm not sure to well understand all this affair.

Just to say Ienjoy spending time with the Xoops project but - and I'm probably not alone - on certain conditions:
• I want to know who runs the project, what the organization is legally recognized?
• I do not want the work to be recovered by people with malicious intentions (what prevents Herko still block the project?)

From a moral standpoint, I would have liked to condemn the fact of putting a few thousand dollars in pocket: it was partly from donations, something that should be "sacred" in an open project.

... the day I saw xoops.com point to this site I would be reassured. The judicial seemed a possibility to restart on a sound footing. This is clearly not the case.

We not only need luck, but to see more clearly the legal status of Xoops.

---

I hope you will be back one day to xoops :)
Published: 2010/4/26 7:08 • Updated: 2010/4/26 7:08
Finally a fresh view of this matter which i trust more then the initiators!

Thanks Mith
Published: 2010/4/26 10:12 • Updated: 2010/4/26 10:12
Quote:
4.8 XOOPS Foundation LLC shall as the put into wrong party judged to pay the proceeding costs.


<sarcastic>Meaning the Xoops foundation has to pay 979 euro's. Donations well spend I would say </sarcastic>
Published: 2010/4/26 13:14 • Updated: 2010/4/26 13:14
Incama, you said before:
Quote:
This will be my last post ever on this website. In fact, this will be my last post on any XOOPS related website.

But you just couldn't resist to put some sarcasm here, huh?

As I said before:
Quote:
We really don't need people from ICMS coming here and telling us how this community should run this project, and flame us. We don't go to ICMS and tell you what to do and how to run your project, so we would appreciate if you would respect XOOPS as well.

You left XOOPS, you contribute to a competing project, so please move on...
Published: 2010/4/26 13:35 • Updated: 2010/4/27 3:07
Quote:
Quote:
it is beyond our comprehension that the court could state that purchasing by Herko the domain www.xoops.com on behalf of XOOPS (as confirmed by others)

Who has confirmed this? I have only seen people (including myself) denying the claim that Herko purchased the domain on behalf of anyone.

You also conveniently leave out of the equation the fact that Herko had the domain appraised by independent valuars - he did not arbitrarily pick the amount out of thin air.

Now the verdict complies with common sense and you should start moving on instead of wasting more of XOOPS' money on useless lawsuits. (only my opinion and seeing how you seem to like to play childish censorship games with forks and other CMS's, I doubt you will listen to reason now... so good luck XOOPSers. I think you'll need it)"

@ Mamba , Please stop with your childish games! or YOU should move on.... Your comments are not doing Xoops any good at all and its making you look rather young in age...
Published: 2010/4/26 14:14 • Updated: 2010/4/26 17:18
Quote:
@ Mamba , Please stop with your childish games! or YOU should move on.... Your comments are not doing Xoops any good at all and its making you look rather young in age...

Dimmer, courts do make mistakes - that's why we have an appeal system.

I appreciate your comments, and I hope, you will not take it negatively, but since the last time you posted something on XOOPS was in 2006, I have to wonder why would you come out to voice your opinion now?
Published: 2010/4/26 14:29 • Updated: 2010/4/26 14:29
Mith,

Quote:
Who has confirmed this? I have only seen people (including myself) denying the claim that Herko purchased the domain on behalf of anyone.

Look, when two people, both in a position of knowing, make the same statement independently of each other, we need to assume that it's correct. You posted it, it is in writing, and nobody forced you or David to make these statements. But they are there, as we showed it in the original thread. I don't want to argue anymore about it - I let the readers be the judge...

Quote:
You also conveniently leave out of the equation the fact that Herko had the domain appraised by independent valuars - he did not arbitrarily pick the amount out of thin air.

Yes - the "Independent Valuars" did provide an estimate for him. Here are the estimates that Herko provided to the Court. They are taken from the Web:

http://www.dnscoop.com/
http://www.estibot.com/

According to www.dnscoop.com, the estimated value of http://xoops.org is: $30,590,000

If you believe that those estimates are accurate, then we could vote as XOOPS community to see if we agree to sell it to you or Herko at 30% discount - for only $20,000,000. Are you buying? You will get an incredible bargain. After all, it is estimated by "Independent Valuar"...

I leave it without any further comments....
Published: 2010/4/26 15:09 • Updated: 2010/4/26 15:09
In my opinion, it is important to remind users of Xoops that donations are made today are for the Xoops project, it means the XOOPS Foundation LLC

The old organization (laws of the Netherlands), became the personal bank of a small man in a small country. It's sad but it seems that justice can not do anything.

The kids are not today's leaders but leaders of the past: a bunch of buddies who got along well, who trusted each other and do not anticipate that the Xoops project would grow without them.


Quote:
I leave it without any further comments....

I do the same :)
Published: 2010/4/26 16:44 • Updated: 2010/4/26 16:45
Quote:

2.6 Coomans has the domain name xoops.com in the first half of 2008 offered for sale on the internet. He sold and delivered the domain name on 14 november 2008 to the Stichting for an amount of 4000 EUR.


But on 14 november 2008, Stichting(Xoops Foundation) had only one board member.

Acording to Xoops Foundation statutes the board requires 3 members to take any decision.
https://docs.google.com/viewer?url=htt ... PS_FoundationStatutes.pdf

I'm not sure if the court was aware of this document and I'm not sure if "XOOPS Foundation LLC" can legaly represent the XOOPS Community..

What I am sure however, is that justice WAS done.
If I was a judge, and I was given the facts above, I would have come to the same veridict.

"People don't plan to fail, they fail to plan."

I think "XOOPS Foundation LLC" should get a better lawyer.
Published: 2010/4/26 17:25 • Updated: 2010/4/26 17:25
Stop looking backwards, instead look and go forwards.
Don't spend any xoops donation money on further lawsuites. In am sure none of those who donated the last couple of years would like to see their donated money go into this lawsuit. Fot that matter knew their donated money would be spend on this lawsuit!
In that case, start a separate donation possibility especcially for your possible appeal.
I am sure the overall xoops community is tired of this matter.
The court has spoken, take it as it is, leave it as it is.
Straighten your back, put on a smile and leave the anger behind you. Then you are Open Source mature.
Published: 2010/4/26 17:33 • Updated: 2010/4/26 17:33
@Balzac,
No one can go to court representing a community that doen't wants to be represented.

Since I signed the petition, I will donate 20€ to pay my share on the lost lawsuit.

I don't mind to pay extra 20 to give it another try.

When all the facts are on the table, and we are legaly represented, and the court says "NO", then I'll straighten my back.
Published: 2010/4/26 17:49 • Updated: 2010/4/26 17:49
Donation sent...
Published: 2010/4/26 17:57 • Updated: 2010/4/26 17:57
It seems to me that there are some misconceptions about what we are trying to accomplish here, especially from the legal side of fiduciary duties of a Board member. There are basic ethical/legal standards for non-profit organizations, which should be followed.

We were surprised by the Dutch court decision, because it seems like the court was OK with Herko's "self-dealings" and "conflict of Interest" at "Stichting XOOPS".

As stated in Wikipedia, when they are talking about "Conflict of duty and Interest":

Quote:
As fiduciaries, the directors may not put themselves in a position where their interests and duties conflict with the duties that they owe to the company. The law takes the view that good faith must not only be done, but must be manifestly seen to be done, and zealously patrols the conduct of directors in this regard; and will not allow directors to escape liability by asserting that his decision was in fact well founded.

As stated further, "Traditionally, the law has divided conflicts of duty and interest into three sub-categories." The one relevant to us:

Transactions with the company
Quote:
By definition, where a director enters into a transaction with a company, there is a conflict between the director's interest (to do well for himself out of the transaction) and his duty to the company (to ensure that the company gets as much as it can out of the transaction).

Herko made over $5,000 from selling www.xoops.com domain to "Stichting XOOPS". And he made the purchase decision on behalf of "Stichting XOOPS" himself. If this is not a "conflict of interest" and "Self-dealing", then I don't know what it is.

There are tons of articles about it, and you can look on your own in Google.

But to give you two examples of conflict of interest:

That's what Minnesota Attorney General says:

Quote:
To Exercise the Duty of Loyalty:
1. Conflicts of Interest. Under certain circumstances, a contract or transaction between a nonprofit corporation and its director or an organization in which the director has a material financial interest is acceptable. However, if the transaction is challenged, the director will have the burden of establishing that the contract or transaction was fair and reasonable, that there was full disclosure of the conflict and that the contract or transaction was approved by members or other directors in good faith.

But there were no other directors at the point of the decision. It was only Herko who made the decision himself.

Other boards even post example of "not allowed conduct", to make sure that people understand what "conflict of interest" means:

Quote:
EXAMPLE: XYZ Corporation is selling property to the Conservancy for fair market value. The Conservancy's Board member, Jones, is also a member of the board of XYZ Corporation. Jones appraises the property for XYZ Corporation. Even if Jones waives all appraisal fees, a conflict exists both because Jones is a director of both corporations and both corporations have an interest in the transaction, and because Jones rendered consulting services. Jones should recuse himself, on the record, from any involvement in this project.
[Note: If Jones own more than 5% of XYZ, the Conservancy's policy regarding Conservation Sales to or From Related Parties would prohibit the Conservancy from purchasing of land from XYZ Corporation.]

In our case, Herko owned 100% of the Domain (and I am leaving out the fact that he purchased it on behalf of XOOPS as a XOOPS Project Manager).

I hope, this will make more clear to the readers what are we dealing here with.

And I would like to challenge all Herko's friends to show any similar case where a Board Director would sell something back to his organization, be the only decision maker on that sale, make huge profit out of it for himself, and everybody would be OK with it.
Published: 2010/4/26 18:00 • Updated: 2010/4/26 23:23
Quote:
Since I signed the petition, I will donate 20€ to pay my share on the lost lawsuit.

I don't mind to pay extra 20 to give it another try.

Thanks Trabis for your support!!! Very much appreciated!
Published: 2010/4/26 18:50 • Updated: 2010/4/26 18:50
The most significant line in the entire article
Quote:
the important thing for us as a community is to continue with our work and keep moving forward

Published: 2010/4/26 22:05 • Updated: 2010/4/26 22:05
Our success on the XOOPS community depends on the existence of genius developers like Trabis, and the existence of a wise administration, such as Mamba. What happened was so sad,but we have the capacity to complete ,let's be united as always, and be positive.
Published: 2010/4/27 1:21 • Updated: 2010/4/27 1:22
Quote:
Mith,

Quote:

Who has confirmed this? I have only seen people (including myself) denying the claim that Herko purchased the domain on behalf of anyone.


Look, when two people, both in a position of knowing, make the same statement independently of each other, we need to assume that it's correct. You posted it, it is in writing, and nobody forced you or David to make these statements. But they are there, as we showed it in the original thread. I don't want to argue anymore about it - I let the readers be the judge...

Lots of assumptions (must be nice for the community to know that you are launching lawsuits based on assumptions...)

We weren't in any particular way knowing about Herko's private dealings - I have explained why I wrote what I did, you chose to ignore it.

Quote:

Quote:

You also conveniently leave out of the equation the fact that Herko had the domain appraised by independent valuars - he did not arbitrarily pick the amount out of thin air.


Yes - the "Independent Valuars" did provide an estimate for him. Here are the estimates that Herko provided to the Court. They are taken from the Web:

http://www.dnscoop.com/
http://www.estibot.com/

According to www.dnscoop.com, the estimated value of http://xoops.org is: $30,590,000

If you believe that those estimates are accurate, then we could vote as XOOPS community to see if we agree to sell it to you or Herko at 30% discount - for only $20,000,000. Are you buying? You will get an incredible bargain. After all, it is estimated by "Independent Valuar"...

I leave it without any further comments....

So you are actually saying that Herko sold it too cheap. He'll be pleased to know that you think that. Should he expect a cheque in the mail sometime soon?

Apparently the judge accepted the valuars as independent and that's certainly good enough for me. If it is not good enough for you and you want to jeopardise/waste more of XOOPS' money, be my guest - after all you don't answer to me, but to "the community".
I'd just wish you wouldn't base your lawsuit on misinterpretations of 5 year old remarks made by me in an annoyed discussion with a grouser.
Published: 2010/4/27 6:10 • Updated: 2010/4/27 6:10
Quote:
So you are actually saying that Herko sold it too cheap.

No, what I'm saying that the price was way too high! Just because he tried to justify it with some crazy estimates done by a silly Website, doesn't make it right (unless you believe that www.xoops.org is worth over $30,000,000).

I hope, we agree that a "fair value" is the value that the market bears. Herko put the domain for sale in mid 2008 for $500. Since nobody bought it for several months at that price, then obviously it was not worth even $500. Approving the purchase as a Chairman of the Stichting XOOPS at a price of over $5,000 for something that was not worth $500, is definitely acting against interests of Stichting XOOPS, especially since it was done in in self-dealing

Mith, the price, as unrealistic as it is, is secondary here. The main issue is "self-dealing" and "Conflict of Interest", which constitutes a breach of fiduciary duties as a Board member.

And that's what the lawsuit was based on.

So let's focus on this as the main issue.
Published: 2010/4/27 7:08 • Updated: 2010/4/27 7:08
hi' Mithrandir,

Quote:
So you are actually saying that Herko sold it too cheap.

It is not Mamba says. I strongly believe you well understand : the question is why 4000 $ instead of 8.50 $ ?

Why ? A simple question : if we could find a simple answer...

(edited by me)
Published: 2010/4/27 7:20 • Updated: 2010/4/27 8:19
So what I understand is this: You thought you had a case but you didn't. The case wasn't well prepared and you lost.

This is all hindsight, but you should have gotten the 10.000 first. And worry about the rest later. You should have gotten signatures first. Community support for this lawsuit.

Now it just looks like two people who are in an argument, and the community who draws the shortest straw.

Herko clearly thinks he had the right to take the 4000. Was that retaliation? What happend beforehand? Was he angry?

Did Herko put in 4000 euro worth of money/resources/time into the community? Was his work apreciated?

Where did the 15.000 euro come from? Was that part because of Herko?

In war there is always collateral damage. Try to make it a clean war....
Published: 2010/4/27 10:16 • Updated: 2010/4/27 10:16
I must confess, I am surprised that a court of law would accept a valuation for a domain that was created by a bit of software and based on web stats alone, without any requirement to qualify the domain’s true market value.

That’s like someone valuing my fake Rolex at $20,000.00 with the justification that it has the word "Rolex" written on it, which is a high-scoring keyword in internet searches.

I think I’ll lose it and see if my insurance company agrees.
Published: 2010/4/27 10:54 • Updated: 2010/4/27 10:54
WOW, 225 xoopsers signed the petition. The XOOPS Community are, ... help me calculating, ...how many people?

Is it a sad day for the XOOPS community or only for a few people? Perhaps for You? Did you notice that many people laugh about the situation and the webmasters here? I'm not willing that You spend my donations for such law fightings especially not against Herko.

Stop that fight and do what you can do best! I Hope that this is XOOPS related, but actually I'm not sure, realy.
Published: 2010/4/27 13:53 • Updated: 2010/4/27 13:53
I do not understand you studioC

You say you do not want your donations are spent in vain: ok, but no one wants such a thing. What we want is that the legal situation of Xoops is clear for everyone (one legal structure that holds the funds and domain names)

You say you do not want your donations are used in particular against Mr. Coomans Herko: ok, but ... wait a minute! You're Xoops.org member since 2003 and active until 2008, you gave a lot to Xoops (time and money may be). What happened this time and money (donations and advertising revenue)? To be clear: one party is in the pocket of Mr. Coomans Herko? True or not?

Nobody wants war here, we just want Xoops advance without being able to put a spoke in the wheels! So please, especially for people no more involved in Xoops project, forget your past or current friendships before discussing here, forget your hatred: it is a community project!

It is beautiful but fragile, stop banging on people who currently do the best they can


I'm still trying to understand, why Mr Herko Coomans sells xoops.com $4000 instead of $8.50 ? Have you some idea ?
Published: 2010/4/27 14:40 • Updated: 2010/4/27 14:44
Wer im Glashaus sitzt sollte nicht mit Steinen werfen.

(Sorry for this comment)
Published: 2010/4/27 14:43 • Updated: 2010/4/27 14:43
Quote:
This case will be definitely a warning to other Open Source projects to avoid the Dutch "Stichting" legal form, and about the Dutch court that obviously doesn't understand the Open Source project idea.


I don't have a problem perse with this case, Herko or the XOOPS community. I do have a problem with the above statement.

This is just some self-righteous BS and when I read that I can understand why you lost the case. Everything is so obvious, we are an opensource community and the judge will see that and prove us right. Well wake up because in the real world it doesn't work that way.

Let's analyze what the judge said with a proper translation in proper english, not that babelfish translation from legalspeak you have there.

What the judge said was that following:
1. This is an international case but because both parties made references to dutch civillaw they both silently agreed and accepted that this case is suseptable to dutch law.

2. The Dutch foundation was founded in 2004 and the international foundation was founded in 2009. From the evidence presented it wasn't clear who is the real representative of the community.

3. Since it isn't clear who represents the community in it also isn't clear who is the rights-holder of the XOOPS name and rightfull owner of the xoops.com domain. XOOPS LLC doesn't provide enough evidence to prove that it's suffering from the sale of the domain to the dutch foundation.

Or in even simpler terms. There are 2 foundations who claim they are representing the community. One is now disputing the others rights but doesn't provide enough argument or evidence to prove why (will the real slim shady please stand up). Because one hasn't proven that it is the representative it also hasn't proven that is has suffered damages from the sales of the domain, the judge doesn't say anything about whether the sale was rightful or lawful he/she just said that XOOPS LLC didn't suffer any damages.

When a group or community goes from private organisation to foundation form it isn't uncommon for the founder/leader to sell personal properties (essential to the community) to the newly founded foundation. Whether the price paid is justified is something between the foundation members and the seller.

XOOPS LLC is the plaintiff and because of this the burden of proof is on your shoulders. Because you did not provide enough argument/proof to backup your claims the judge dismissed everything. This doesn't mean that there wasn't any wrong doing it only means it is unclear whether there was any wrong doing. The door is still open for XOOPS LLC to make it clear but todo this you will have to make a better case for yourself. Come with documentation, letters, e-mails, messages and clear agreements. You can't accuse Herko of any wrong doing when you didn't have an agreement to begin with.

I don't see anything wrong with the judges verdict or with the dutch legal system. What I do see however is a XOOPS foundation who wen't to court without making a case for it's self, lost the case and now it's crying wolf. The legal system isn't a child's toy and the world isn't black&white. Maybe you should take it and your actions more seriously because what you are doing rightnow is make Herko's case even stronger in case of a future appeal.

What you could do for here on. The judge clearly said it wasn't upto XOOPS LLC to interfere with the business of the dutch foundation. If you really feel there is wrong doing here then you should find members/donators of the dutch foundation and start a case on their behalf.

If you really do feel it is upto you to interfere with the dutch foundation then you should come with evidence/arguments which proves the dutch foundation was a subsidiary of the global XOOPS community and thus has to account all of it's actions infront of the global XOOPS community. Oh and for the record, it is my opinion (maybe your council might think otherwise) that with the current verdict the text of the petition won't do you much good.
Published: 2010/4/27 17:10 • Updated: 2010/4/28 9:35
Thanks saykoshey for making it clear.
Published: 2010/4/27 17:41 • Updated: 2010/4/27 17:41
Hi Saykoshey,

thank you very much for your post and for taking your time to translate it.

Yes, you make a lot of good points, and I appreciate it!

If the statement you quote came too harsh, I apologize.

* However I still believe that the Dutch "Stichting" legal form is not a good for an Open Source community project, because the Board can do whatever they want and disregard the community, as it was in our case

* It was not an attack on Dutch legal system but a statement that sometimes courts don't understand high-tech issues, or in this case Open Source Project issues and they might try to use cases that are not relevant to us, and we as Open Source community need to be warned about it. BTW - this is not related to Netherlands, as it happens in USA as well, and around the world. Again, if somebody felt offended - I apologize.

As I said earlier, you make a lot good points. I can see that the judges were looking for something different than what we've provided.

However, I thought, we proved beyond any reasonable doubt that there was a breach of fiduciary duties in the sale of the domain.

The Dutch Supreme Court is very clear in its decisions about "Conflict of Interest" (see here), therefore I was shocked that our court didn't invalidate the purchase of the domain due to conflict of interest and breach of fiduciary duties.

Again, thanks for taking your time to provide your perspective.
Published: 2010/4/27 18:10 • Updated: 2010/4/27 19:55
Herko has put a reaction on ImpressCMS and on his blog.
A news article was posted on Tweakers (Dutch technology site) by Incama.
Published: 2010/4/27 19:23 • Updated: 2010/4/27 19:23
Hey Mamba,

No worries I hadn't taken any offence. IMO the statement was just a bit too simplistic and I was just hoping to shake you guys up a bit by confronting you with things you might have done yourself.

Maybe I should've introduced myself before I posted. I've been around this community since 2001 (with username GIR), made a few minor contributions back then before moving on. But XOOPS has always been my favorite fallback for when I needed to create a site, the times I said @Just download xoops and you're set@.

Keep in mind that I do not have access to the full history and/or documents and also I 'm not a lawyer nor a judge. I was just speaking my mind.

Anyway if I can speak my mind once more (as a person who tries to keep an objective p.o.v.) I can find several things wrong with this case.

First of all I can't help but think Herko took the community for a run around.

The judge looked at this case with a classical sense because there probably was no other choice. What he/she sees is foundation A being founded with (notarized?) statutes but after a while members of foundation A become disgruntled and decide to found foundation B.

Am I right so far?

Foundation B then comes back to sue foundation A and claims that they are suffering from actions taken by foundation A. Foundation B was already founded by people who were disgruntled and are free todo with their new foundation but they do not have the right to question the actions of foundation A.

This is civil law up until now.

However there is one thing that doesn't come up in the lawsuit and that is the reason why foundation B was founded and why the members became disgruntled. The reason why is because the person who suggested to found foundation A (maybe, I do not know) lied about several things.

First of all Herko said that it isn't allowed for external parties to have a vote in the council of a dutch foundation. I'm not sure if there is a specific law which says this but this seems false to me. When ti comes to foundations the law leaves the management part pretty much untouched, it does require for notarized statutes and if the members agree in these statutes that there should be no external votes then it is so but that doesn't mean it is prohibited by law.

Also I have read on your site that the domain xoops.com was DONATED to the XOOPS COMMUNITY. If this is true then Herko had no right to make it his personal property.

Both these offences are almost criminal in my mind but it's also an internal affair of foundation A. That is what the judge said, XOOPS LLC has no right to question what goes on at the dutch foundation BUT members of XOOPS LLC are also members of the dutch foundation and the reason why members of XOOPS LLC opted to found the dutch foundation is because they had been lied to at the first place. So the dutch foundation (foundation A in this story) had no existence right to begin with and thus the xoops.com domain should've been property of the xoops community and not Herko.

Maybe another tactic could prove more successful. First of all Herko doesn't deny that he didn't post all those messages in the forums right? Dutch law says that electronic messages are equal to that of written messages so his postings are legally equivalent to a written agreement. With those messages you could prove that Herko lied to you and argue that funds and donations received by the dutch foundations should've actually been received by XOOPS LLC, also the domain donated to the xoops community should've been property of XOOPS LLC and not the dutch foundation.

You could also file a criminal complaint and try to get a criminal conviction. If you have a criminal conviction then the above argument gets more force as a civil judge cannot ignore a criminal conviction.

Anyway just my opinion. If you look at the case from messages and such on this board then a pattern becomes apparent BUT a judge can't look at messages and such he/she can only look at arguments presented by you and apparently the arguments were a bit lacking. If you revise your case file a case with a higher court I'm sure you could win this. The thing is that you can argue all this (just like I did just now with this piece of text or maybe it's a fairytale) but proving it is another thing all together.

As a person who was around for the beginnings of this project I know it will be very hard to prove any of this. Back then nothing was formal and everything was based on good will, we had mutual trust that the project would be taken into the right direction by contributers and volunteers. If somebody did something which goes against the community then he/she got the finger accompanied with some swearing and that was it but this case goes much deeper then that. This is about a person who under the banner of good will received approval to found a legal entity and during this process closed the door shut behind him and even if everybody can see that something is wrong it still is hard to prove. Legally this is an internal affair and I'm confident you will be much more successful if you start another case as a member of the dutch foundation and not as a competing foundation.

Oh and the reason why I said you should be more carefull with what you said on the site is because it would open up doors for a slander complaint and then you're farther away from home.
Published: 2010/4/27 19:31 • Updated: 2010/4/28 8:41
Why is it my IP and a false geolocation together with a false ISP popped up under my posts? I don't think I made it a secret I am dutch since I translated the original dutch verdict...
Published: 2010/4/28 8:36 • Updated: 2010/4/28 8:37
I don't know what happened. I've removed it
Published: 2010/4/28 8:45 • Updated: 2010/4/28 8:45
All figures are in Euro's!

Return of funds (I suppose including the 4000,- domain name) is prox. 15.000,-

After reading the financial draft 2009:
- Attorney costs total: 4388,91
It's unclear if this figure is inclusive or exclusive the rendered proces costs as a result of the lawsuit lost by Xoops: 979,-

You really should ask yourself if the costs for proceeding, (an appeal) in this case is worthwhile.
If you ask me I'd say absolutely not!
Published: 2010/4/29 12:46 • Updated: 2010/4/29 12:46
@ Balzac,

1) Not all figures are in Euro
Quote:
- Attorney costs total: 4388,91

That's in US$. In Euro it would be 3316

2) Quote:
It's unclear if this figure is inclusive or exclusive

This is a Balance Sheet for 2008 & 2009, so of course, any 2010 numbers are not included for obvious reasons.

Quote:
You really should ask yourself if the costs for proceeding, (an appeal) in this case is worthwhile.

Of course we will ask that question, once we have the opinions from our legal experts. We are not going to throw money away for nothing.
Published: 2010/4/29 22:26 • Updated: 2010/4/29 22:26
I agree that its time to move on. probably there is a need to publish an article about this on a newspaper/media on Coomans country as a warning/note. But we have to think if it makes financial sense to pursue this case. My point is that we have to make sure that this is not repeated and that all legal documents/processes are kept in place and updated regularly in a transparent and accountable manner so we all know that all our efforts are legally accounted for and xoops managers are not taking advantage for their own gains in an inappropriate manner.
thanks
Published: 2010/5/3 11:30 • Updated: 2010/5/3 11:30